Yesterday's 6-2 Supreme Court ruling in EPA v. EME Homer City Generation upholding the EPA's cross-state air pollution rules is in the news, and not just because it reversed a highly criticized DC Circuit opinion that served as an example of that court's ideological, pro-corporate rulings when it was dominated by conservative judges. Berkeley Law Professor Dan Farber noticed a glaring factual error in Justice Scalia's dissent:
Scalia's dissent also contains a hugely embarrassing mistake. He refers to the Court's earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that's exactly backwards: it was industry that argued for cost considerations and EPA that resisted.
This morning, the mistake was rectified. But it is a telling incident, not because Scalia made a factual mistake in which party made which argument in a decade-old case. What the mistake and the way Scalia corrected it show is that Scalia jumps to conclusions to fit his preconceived ideological and political beliefs.
Page 3 of the dissent raises the specter of Marxism, describing the EPA's "utterly fanciful 'from each according to its ability' construction" of the Clean Air Act. While we now come to expect far right hysterics about President Obama being a communist, a Marxist, a socialist, or a Stalinist, Americans deserve better from Justices of the Supreme Court. But Scalia's fanciful allusion to communist ideology suggests that he's approaching this case less as a disinterested judge and more as an ideological Tea Party warrior.
In this case, the EPA wants to incorporate cost considerations into its analysis of what regulations will best serve the goals of the Clean Air Act. In the 2001 American Trucking case that he cites, the Supreme Court ruled that in a different context, such an analysis is not permitted by the law. In that case, it was industry and not the EPA that wanted to include cost considerations.
But that apparently didn't fit into Scalia's preferred conception of the world. So he wrote:
[t]his is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation.
Sounds like a long-term conspiracy, with the big bad federal government constantly grasping for power in a lawless way. But this morning's scrubbed version says:
[t]his is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation.
Not so scary.
Scalia's subject headings and the change he made this morning are equally telling. Scalia gleefully began this section of this pre-scrubbed dissent with the sarcastic header:
Plus Ça Change: EPA's Continuing Quest for Cost-Benefit Authority.
As we now know, the only "continuing quest" was Scalia's quest to see federal regulations as part of some vast left wing conspiracy. A potentially chagrined Scalia has now changed the heading to the glee-less:
Making a simple factual mistake is embarrassing for a Supreme Court Justice. You might forget which was Marbury and which was Madison. Ordinarily, we might note the mistake, correct it, and move on. But yesterday's mistake and today's corrections suggest that Justice Scalia is approaching cases with an overly ideological lens, rather than as a fair and disinterested judge.